Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28150
THIRD DIVISION Docket No. MW-27517
89-3-86-3-776
The Third Division consisted of the regular members and in
addition Referee John C. Fletcher when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Burlington Northern Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed to notify Mr.
C. L. Smith, III that he was the successful applicant for the position of bus
driver (Job 10367) advertised by Bulletin No. GA-026 and when it refused to
permit him to work that position (System File BN-23-85/DMWD 86-01-20).
(2) Because of the aforesaid violation, Claimant C. L. Smith shall be
assigned to and permitted to work the bus driver's position referred to in
Part (1) hereof and he shall be compensated for all wage loss suffered and
expense incurred."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On September 15, 1985, Claimant was furloughed from Section District
16, Fort Collins, Colorado. That date he placed a bid on Bulletin G-026,
dated August 30, 1985, Bus Driver Position No. 10367, for which he was qualified. That same date Cla
districts and was told to contact the District Roadmaster on the Yellowstone
Seniority District, who in turn advised him to report for work on September
16, 1985.
On September 27, 1985, bidding closed on Bulletin G-026. On September 30, 1985, the Yellowstone
from Miles City to Terry, Montana. On that date Claimant made an inquiry
about the status of his bid for the Bus Driver position. On October 9, 1985,
Form 1 Award No. 28150
Page 2 Docket No. MW-27517
89-3-86-3-776
while at home for a brief stay, he inquired again about assignment to the
vacancy. He was told that he was not the successful bidder. He returned to
the Yellowstone Gang and worked until October 17, 1985, when he was laid off.
The next day he was advised that he was successful bidder and that he was to
report for duty. Upon showing up for work the Foreman on duty refused to let
him assume the assignment. It seems that an employee with greater seniority
than Claimant had displaced on the position on October 14, 1985.
The Claim of the Organization seeks placement of Claimant on the
assignment and payment for all wages losses suffered as well as expenses
incurred while working on the Yellowstone District.
Carrier contends that any payment to Claimant would be an unjust enrichment. It was his responsi
he was the successful bidder. It also contends that Rule support is absent
for the payment of any expenses Claimant may have occurred.
It is our view that Claimant is entitled to payment of any wage losses incurred between Septembe
and October 14, 1985, (the day a senior employee took over the assignment)
when he was not placed on Position No. 10367. Claimant made several attempts
to determine if he was the successful bidder but was either given no advice on
his status or was misled into believing that he was not the successful bidder.
We are not impressed with Carrier's defense that they did not know how to contact Claimant, and were
district.
Accordingly, we will award that Claimant be paid the difference
between what he earned and what he would have earned between September 28,
1985, and October 14, 1985, had he been assigned to Position No. 10367. We
will not award payment for expenses incurred while working on the Yellowstone
District.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ealr4o
e
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 16th day of October 1989.